Commonwealth v. Gray

489 A.2d 213, 339 Pa. Super. 385, 1985 Pa. Super. LEXIS 6119
CourtSupreme Court of Pennsylvania
DecidedMarch 1, 1985
Docket00298
StatusPublished
Cited by17 cases

This text of 489 A.2d 213 (Commonwealth v. Gray) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Gray, 489 A.2d 213, 339 Pa. Super. 385, 1985 Pa. Super. LEXIS 6119 (Pa. 1985).

Opinions

BROSKY, Judge:

This appeal is from the judgment of sentence after a jury found appellant guilty of two counts of robbery.1 He contends that: (1) trial counsel was ineffective for introducing appellant’s mugshot into evidence and failing to interview potential alibi witnesses; and (2) that the trial court erred in sentencing him on both robbery counts when they arose out of the same transaction. We agree in part with appellant’s first contention and remand for an evidentiary hearing.

[388]*388On January 26, 1982, a robbery occurred at the Casbah Lounge in Pittsburgh. A man came into the bar and, after being served a glass of water, pulled out a shotgun and robbed the bartender and a customer.

The following month both the bartender and the customer selected appellant’s picture from a photographic array. The customer also identified appellant from a lineup. Both the bartender and the customer identified appellant at the preliminary hearing.

A pre-trial motion to suppress the identification was heard and denied by the trial court. The trial began on October 26, 1982 and, on October 27, 1982, the jury found him guilty of robbery. Post-trial motions were timely filed and denied and, on February 1, 1983, appellant was sentenced to 2% to 5 years imprisonment on one of the robbery counts and 10 years consecutive probation on the other. This appeal timely followed.

Appellant first argues that trial counsel was ineffective for introducing appellant’s mugshot into evidence.2 During his cross-examination of the Commonwealth’s witnesses counsel used the mugshots the police had shown the witnesses in the photographic array to question these witnesses concerning their identification. After he was done with the questioning, he moved for the admission of the photos into evidence. Trial counsel also indicated that the photos were of people who had been arrested at' some time.

Appellant correctly notes that generally testimony of prior criminal activity is inadmissible. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). Thus, reference to a defendant’s photograph from which a juror could reasonably infer that the accused had engaged in prior criminal activity constitutes reversible error. Id. Instantly, there is [389]*389no question that a juror could have so inferred from the testimony.

The preceding discussion clearly establishes that appellant’s claim of ineffective assistance is at least of arguable merit. However, in order to prove a claim of ineffective assistance, a defendant must show both that the claim is of arguable merit and that counsel had no reasonable basis for his action. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

There are unquestionably instances where trial counsel may properly elect to allow the introduction of technically objectionable testimony where there is an advantage to be gained by its admission. For example the U.S. Supreme Court recognized that counsel may properly allow his opponent to introduce objectionable evidence where the defense is in possession of information to contradict that testimony and thereby create an issue of credibility which might provide a basis for a jury to acquit. Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564 [569], 13 L.Ed.2d 408 (1965). In Commonwealth v. Goosby, 461 Pa. 229, 336 A.2d 260 (1975) we approved of trial strategy which waived an objection to the admissibility of a statement of the defendant where the statement indicated that the shooting might have been in self-defense or at least in the heat of passion. There we reasoned that although the statement admitted the shooting, the prosecution had eyewitnesses who had presented impressive evidence to establish that appellant was the perpetrator. In that situation we concluded:
“[b]y acquiescing to the admission of the statement and by using the exculpatory portions of it to rebut or weaken the prosecution’s very strong case, counsel had an eminently ‘reasonable basis designed to effectuate appellant’s interest.’ ”

However, in Commonwealth v. Zapata, 455 Pa. 205, 314 A.2d 299 (1974) we held that trial counsel was ineffective for eliciting testimony of defendant’s convictions for [390]*390charges (which could not have been otherwise introduced). In that opinion we had occasion to observe:

“Even where its use is properly limited to impeaching credibility, the introduction of a defendant’s criminal record possesses a potential for severe prejudicial impact on a jury. Thus, there would rarely be a time when the introduction of such evidence would produce, some result favorable to the defendant.

Commonwealth v. Witherspoon, 481 Pa. 321, 327-28, 392 A.2d 1313, 1316-17 (1978).

Thus, although it is unlikely that counsel’s action had a reasonable basis, we must consider that possibility. “The problem in this case, as in most cases where the claim of ineffective assistance of counsel is raised on direct appeal, is that we have before us no record of any hearing at which is delineated trial counsel’s reasons for taking the steps later challenged ... Where ... it is impossible to tell from the record whether or not the action of trial counsel could have had a rational basis, the appellate court will vacate the judgment ... and remand for an evidentiary hearing at which trial counsel may state his reasons for having chosen the course of action taken.” Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976) (footnote omitted), relying on Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605 n. 8, 235 A.2d 349, 353 n. 8 (1967). Since we find it impossible to tell from the record whether there was a reasonable basis for counsel’s action, we must remand for an evidentiary hearing.

Appellant also argues that counsel was ineffective for failing to interview potential alibi witnesses. “Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective.” Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). In the context of appellant’s claim, Pettus requires him to offer to prove that counsel was aware of the alibi witnesses, see Commonwealth v. Ford, 491 Pa. 586, 421 A.2d 1040 (1980), and that [391]*391the witnesses would have been helpful in establishing his alibi defense, see Commonwealth v. Leonard, 499 Pa. 357, 453 A.2d 587 (1982).

This appellant has done.

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Bluebook (online)
489 A.2d 213, 339 Pa. Super. 385, 1985 Pa. Super. LEXIS 6119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-gray-pa-1985.